Legal Commentary

Remember that sections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover, as Marty has pointed out, there's a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. Perhaps the Justice Department could argue that the officials' reliance was unreasonable, but that might be difficult to show.

And putting aside the purely legal obstacles to a prosecution for war crimes, there's also the political cost. Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials? One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy. Such a prosecution would make politics extremely bitter and derail any chance for bipartisan cooperation on almost any significant issue. Obama or Clinton would rather get a health care bill passed, deal with the economy, or try to solve the Iraq mess, than have the first several years of their Administrations consumed by a prosecution for war crimes by officials in the Bush Administration.

As I noted in a previous post, the most likely prosecution for war crimes will not occur in the United States; if it occurs at all, it will come through the use of universal jurisdiction against Bush Administration officials who make the mistake of traveling outside the United States. There are certainly plenty of people outside this country who would like to try Bush Administration officials for war crimes. However, perhaps predictably, an Obama or Clinton Administration would probably try to exert political influence to nip any such prosecutions in the bud, worried that acquiescing in such prosecutions would set a very bad precedent for American interests.

It's important to understand the point I'm making here. It is not that certain members of the Bush Administration haven't committed war crimes. I'm pretty certain that at least some of them have. The point rather is that it is very unlikely that they will ever be brought to justice for it, at least in our own country-- despite the fact that there are statutes on the books which assert that the commission of war crimes violates our laws. That is not a normative recommendation. It is rather a prediction about power politics and about the deeply unjust world that we live in.

Full post as published by Balkinization on April 09, 2008 (boomark / email).